Supreme Court alters evidence rules for CAB cases

Court overturns decision that the exclusionary rule does not apply in seizure of assets cases


A significant Supreme Court decision means a rule permitting the exclusion of evidence obtained in breach of constitutional rights also applies to cases concerning ownership of property seized by the Criminal Assets Bureau.

In a unanimous judgment of the five judge court on Tuesday, it overturned lower court decisions that the exclusionary rule does not apply in cases under the Proceeds of Crime Act 1996.

In the judgment, Ms Justice Iseult O’Malley set out a detailed response and legal test to be adopted by a court when a breach of constitutional rights is involved in the seizure of assets under the 1996 Act.

The question is whether a breach of rights has occurred such that a forfeiture order should not be made under the Act, she said. That question would not arise until after a court decided whether the asset at issue is the proceeds of crime.

When the issue is raised, CAB must prove, on the balance of probabilities, the asset was not seized in unconstitutional circustances or, if it was, it was still appropriate to make the orders sought.

If a CAB application is refused, that does not necessarily mean seized property such as firearms or drugs will be returned to the person from whom it was taken as there is no legal or constitutional right to possession of such items, she stressed.

A court should refuse forfeiture if evidence establishes the asset was seized in such circumstances the court would be lending its process to action by State agents involving a “deliberate and conscious” breach of constitutional rights.

The judgment was given in an appeal concerning a dispute over ownership of cash sums totalling just under €20,000 seized by CAB.

The High Court must now reconsider, in accordance with the Supreme Court judgment, a dispute between CAB and Michael Murphy Senior, from Riverview Estate, Cork, and his son Michael Murphy Junior, over whether CAB is entitled to orders for forfeiture of the cash.

The money was seized from the home at Clonard Avenue, Granagh, Co Cork, of a girlfriend of Mr Murphy Junior, a property which the High Court also treated as his dwelling.

The seizure was made in a follow up search after Mr Murphy Junior was stopped by gardai in May 2009 driving an Audi car with six firearms in the boot, for which he later received a six year sentence.

The seized cash — Stg 6,625 and €9,000 — was made subject of freezing orders after the High Court found it represented the proceeds of crime.

Mr Murphy junior, who has 43 previous convictions, was alleged by CAB to be involved in drug dealing. His father, who lost his sight in an accident in 1983, has 21 previous convictions and CAB claimed he had a shared involvement in crime with his son including handling stolen property.

The son claimed his money came from legitimate sources including his waste business while his father claimed he got funds fom his late mother and from begging in an effort to raise money for an eye operation.

Both men said the seized cash belonged to them and argued it was unconstitutionally or illegally obtained on foot of an invalid warrant used to search the Clonard Avenue property.

After the High Court and Court of Appeal upheld claims by CAB the exclusionary rule does not apply in proceedings concerning ownership of seized property, the Supreme Court agreed to hear a further appeal by the Murphys n the basis there was a “wide public importance” in clarifying the law in that regard.

In the court’s judgment, Ms Justice O’Malley said the cash was seized from the dwelling of Mr Murphy Junior on foot of an invalid search warrant because that was issued in 2011 under Section 29 of the Offences Against the State Act, later struck down by the Supreme Court in 2012 as unconstutitional.

The problem is not whether items seized in such circumstances can be put in evidence because CAB does not intend to do that, she said. The issue was whether CAB was entitled, given the illegality of the search, to a forfeiture order intended to deprive the Murphys of the cash.

The constitutional principles underpinning the exclusionary rule also apply in civil proceedings such that the State should be denied the benefit of an action by its agents in breach of an individual’s constitutional rights, she ruled.

The “broader purpose” of the rule is to protect important constitutional rights and values whose common themes include the integrity of the administration of justice, the need to encourage agents of the State to comply with the law, or deter them from breaking it, and the constitutional obligation to protect and vindicate the rights of individuals.

There is nothing about proceedings under the Proceeds of Crime Act that renders those underlying principles inapplicable in this case, she said.